Order by:

Smt.Priti Malhotra, President

1.       The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that the complainant has purchased the following joint policies from the Opposite Parties in her name and his son namely Arshdeep Singh Arora:-

i)       Policy bearing No.31940396202100 valid from 06.09.2021 to 05.09.2022;

ii)      Policy bearing no.31940396202201 valid from 07.9.2022 to 06.09.2023;

iii)     Policy bearing no. 31940396202302 valid from 07.09.2023 to 06.09.2024.

          In the aforesaid policies, the complainant alongwith her son are jointly covered for the basic sum assured of Rs.5,00,000/-. Unfortunately, during the policy period from 06.09.2021 to 05.09.2022, the complainant was diagnosed with Carcinoma Endometrium (Cancer that forms in the tissue lining the uterus). For the treatment of above said disease and for surgery, complainant got admitted in Mohan Dai Oswal Cancel Treatment and Research Foundation, Ludhiana on different dates. Thereafter, the complainant submitted all the relevant documents to the Opposite Parties for claim reimbursement. Alleged that the complainant is still under treatment for the said disease and she spent Rs.3,52,536/- for her treatment. Alleged further that despite timely performing all the formalities relating to the claim, the Opposite Parties have not paid even a single penny to the complainant. Complainant also issued a legal notice dated 13.03.2024 upon the Opposite Parties, through her counsel, but to no  effect. Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs:-

a)       Opposite Parties may be directed to pay an amount of Rs.3,52,536/- to the complainant alongwith interest @ 24% per annum thereon.

b)      To pay an amount of Rs.1,00,000/- as compensation on account of mental tension and harassment.

c)       To pay an amount of Rs.20,000/- as counsel fee.

d)      And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.

2.       Opposite Parties appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the complainant has with malafide and dishonest intention not only concealed the material facts but had also twisted and distorted the same to suit her convenience and to mislead this Commission; there is no deficiency in service on the part of the Answering Opposite Party; this Commission has no jurisdiction to try and entertain the present Complaint. Submitted that the terms of the Policy are in the nature of a contract and their interpretation has to be made in accordance with the strict construction of the contract. The answering Opposite Party is under no liability to pay the amount as claimed by the complainant, as the complainant has suppressed her medical history. The Contract of Insurance is based on a Rocky Foundation of utmost good faith i.e. Principle of Uberrimafides. The proposer/Insured has to maintain and observe a complete good faith in entering into a insurance contract with the insurer. The Insured/proposer is under solemn obligation to make full, complete, true and correct discloser of the material facts which may be relevant for the insurer to take into account while deciding whether the proposal should be accepted. If the Insured/ proposer failed to disclose the true and correct material facts to the insurer then the Policy obtained by the Insured/ proposer stands vitiated and the Insured or any person claiming under it, is not entitled for any benefits under the said Policy. In the present case, the Complainant has suppressed her past medical history of dyspnoea on exertion since 8 years which is prior to issuance of the policy. The said fact was not disclosed by her at the time of issuance of the policy. Therefore, the claim was denied on the ground of non-disclosure of past medical history.

          Averred further that the complainant had submitted a duly filled and signed proposal form along with the requisite documents and premium. On receipt of the Application Form, believing the information provided in the proposal form to be true and correct in all aspect, the policy was issued to the complainant on the basis of the information provided by her in the proposal form.           In the proposal form the insured was specifically asked about the pre-existing medical conditions of the applicant. The Insured replied in negative and declared that none of the applicants were having any pre-existing medical condition. Thereafter, the answering Opposite Party received a claim, from the complainant informing that she was diagnosed with Endometrium Carcinoma and claimed the expenses incurred in her treatment. On scrutiny of documents, it was noted that the complainant had past medical history of dyspnoea on exertion since 8 years which is prior to issuance of the policy. The said fact was not disclosed by her at the time of issuance of the policy. Therefore, the claim was denied on the ground of non-disclosure of past medical history as per clause 8.2(b) & 8.12. Thereafter the Opposite Parties received two legal notices from the complainant. The first legal notice was duly replied by the Opposite Parties vide reply dated 31.05.2023 requesting the complainant to provide claim number. The second legal notice was also replied vide reply dated 01.05.2024 requesting the complainant to submit original bill with break up. The rejection of the claim is as per the terms and conditions of the policy and the same is valid, legal and justified. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.

3.       In order to prove the case, the complainant has placed on record her affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C175.

4.       On the other hand, Opposite Parties have placed on record affidavit of Sh.Rahul Rounak, Assistant Manager of Niva Bupa Health Insurance co. Ltd. as Ex.OP1 alongwith copies of documents Ex.OP2 to Ex.OP6.

5.         We have heard the ld. counsel for both the parties and also gone through the record.

6.       It is admitted and proved on record that complainant and her son availed joint health insurance policy ‘Family Floater’ bearing no.31940396202100 for the period 06.09.2021 to 05.09.2022, which was further renewed for the period 07.09.2022 to 06.09.2023 and thereafter for the period 07.09.2023 to 06.09.2024. It is also proved on record that during the policy coverage from 06.09.2021 to 05.09.2022, complainant suffered ‘Endometrium Carcinoma’ and for the treatment of the same, she got admitted in Mohandai Oswal Cancer Hospital, Ludhiana on different dates. Thereafter complainant lodged the claim for the reimbursement of the expenses incurred on her treatment with Opposite Parties, but the claim of the complainant was denied by the Opposite Parties, vide letter dated 23.03.2023 (Ex.OP4).

7.       The perusal of the said letter dated 23.03.2023 reveals that the claim of the complainant was denied by the Opposite Parties on the ground that the patient has history of dyspnoea on exertion, since 8 years. The ground so taken for the repudiation of claim by the Opposite Parties is not genuine, as complainant has lodged the claim towards the medical expenses for the treatment of ‘Endometrium Carcinoma’ and Opposite Parties denied the claim of the complainant on the ground of ‘dyspnoea on exertion’, since 8 years and there is no nexus between the same. There is no evidence tendered by the Opposite Parties revealing that the present ailment suffered by the complainant is due to her past ailment of dyspnoea on exertion. As per medical dictionary the meaning of ‘Dyspnoea’ is ‘breathlessness’. By any stretch of imagination it cannot be presumed that complainant suffered ‘Endometrium Carcinoma’ due to her past ailment. In this regard, reliance has been placed on Hon'ble National Commission in a case of M/s.Tata AIG General Insurance vs. Ms.Pooja Gupta decided on 19th January 2011 in para-7, wherein held as under:

7. ......

 The onus lies on the insurer to prove firstly that the insured knowingly concealed this material fact from the insurer and secondly that the pre-existing condition has nexus with the medical condition eventually suffered by the insured for which the claim has been raised.

In the instant case too, the Opposite Parties failed to prove that the complainant insured knowingly concealed the material facts from the insurer and that knowingly failed to disclose pre-existing condition has nexus with the medical condition eventually suffered by the insured for which the claim has been raised.

8.       Hence, in view of the judgement of Hon’ble National Commission, New Delhi (supra), we are of the considered view that the denial/non admission of the claim of the complainant by the Opposite Parties is unjustified.

9.       In view of the above discussion, the instant complaint is allowed in part and Opposite Parties are directed to pay Rs.3,52,536/- as claimed by the complainant, subject to the verification of bills. Opposite Parties are also directed to pay compository costs of Rs.10,000/-(Rupees Ten Thousand only) as compensation and litigation expenses to the complainant. The pending application(s), if any also stands disposed of. The compliance of this order be made by the Opposite Parties within 30 days from the date of receipt of copy of this order, failing which, the Opposite Parties are further burdened with additional cost of Rs.10,000/-(Rupees Ten Thousand only) to be paid to the complainant for non compliance of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced on Open Commission